R v Dilk, 2016 MBCA 98

Citation: R v Dilk, 2016 MBCA 98 Date: 20160928 Docket: AR15-30-08498 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) R. N. Malaviya and ) A. C. Parker (Appellant) Appellant ) for the Appellant ) - and - ) M. C. Dilk ) on his own behalf MARK CHARLES DILK ) ) Appeal heard and (Accused) (Respondent) Respondent ) Decision pronounced: ) September 28, 2016 LEMAISTRE JA (for the Court): [ 1 ] The Crown obtained leave to appeal the decision of the

summary conviction appeal judge (the SCA judge) upholding the decision of the trial judge who found the accused not guilty of two counts of breaching a court order under

section 127 of the Criminal Code (the Code ). After hearing submissions, we allowed the appeal, found the accused guilty of two counts of breaching a court order, and imposed an absolute discharge with brief reasons to follow. These are our reasons for decision. [ 2 ] The accused and the complainant were in a common-law relationship.

In 2006, the complainant obtained a final order, which included terms pursuant to The Domestic Violence and Stalking Act , CCSM c D93 (the Act ), that prohibited the accused from entering the complainant’s residence and from having any contact or communication with her except to discuss major decisions affecting their sons or to make arrangements for access (the prevention order). [ 3 ] In March 2014, the accused entered the complainant’s residence to give their son some money. When the complainant found him in her home, they argued, and she asked him to leave.

After the accused left, the complainant contacted the police to report a breach of the prevention order and the accused was charged with two counts of breaching a court order. [ 4 ] During closing arguments at the trial, the trial judge asked the accused, who was self-represented, whether he had a lawful excuse for breaching the prevention order. The accused said that he had been going to the complainant’s residence for six to eight years and that she had been allowing him to breach the court order.

The trial judge found that “the previous eight year practice that may have developed” was a lawful excuse to the charges and found him not guilty. [ 5 ] The Crown appealed the decision of the trial judge. At the appeal, the SCA judge relied on the trial judge’s treatment of the accused’s submissions during his closing argument as evidence in the trial. He found that the accused had committed a “technical breach of the order”, but he upheld the trial judge’s finding that there was a “period of acquiescence”, which amounted to a lawful excuse within the meaning of

section 127 of the Code . The SCA judge dismissed the appeal. [ 6 ] The Crown obtained leave to appeal the decision of the SCA judge on the following grounds: 1. Did the SCA judge err by misapprehending the evidence? 2. Did the SCA judge err by finding that the accused had a lawful excuse for breaching the prevention order within the meaning of

section 127 of the Code ? [ 7 ] We have concluded that the SCA judge erred by misapprehending the evidence and by finding the accused had a

lawful excuse. These two issues are questions of law to be reviewed on the standard of correctness and can be dealt with together. See Rv Lohrer, 2004 SCC 80, [2004] 3 SCR 732. [8] At the trial, the Crown called the complainant as a witness and she gave evidence about what happened when theaccused entered her home in March 2014. She testified that the accused had entered her home before and she had told him many timesthat this “had to come to a stop”, but he would not listen to her. [9] The accused also gave evidence at the trial. He testified that he went to the complainant’s home to give his son somemoney.

While he was there, the complainant engaged him in an argument and told him to leave, which he did. The accused did nottestify about whether he had entered the home previously with the complainant’s consent. [10] After hearing submissions from the accused and then from the Crown, during which the Crown pointed out there wasno evidence before the court of any lawful excuse, the trial judge asked the accused what his excuse was for entering the residence.

Atthis point, and under further questioning by the trial judge, the accused described a history of acquiescence by the complainant in notseeking to have the order enforced. None of what the accused said was in evidence. However, the trial judge relied on the informationprovided by the accused during submissions to find that the accused had a lawful excuse for breaching the prevention order. [11] In his reasons for decision at the appeal, the SCA judge did not address the fact that none of the information about thelawful excuse as found by the trial judge was evidence at the trial.

The information provided to the court by the accused was not underoath, the Crown was not given an opportunity to cross-examine the accused on the information, and the information was not put to thecomplainant, who had testified to the contrary at the trial. Further, the SCA judge relied on the information in upholding the trial judge’sfinding of a lawful excuse. In doing so, he misapprehended the evidence. [12]

Section 127 of the Code makes it an offence to disobey a court order without a lawful excuse. Once the Crown hasproven the elements of an offence beyond a reasonable doubt, as was done in this case, the burden shifts to the accused to establish alawful excuse on a balance of probabilities. A lawful excuse operates to negate the mens rea of an offence which, in the case of a chargeof breaching a court order, means that the accused did not intend the actions that led to the breach. For the purposes of proof of anoffence under

section 127, “it matters not whether it is a civil or criminal order that is being disobeyed” (R v Fairchuk (CL), 2003 MBCA59 at para 33, 173 ManR (2d) 274). See also R v Clement, (SCC), [1981] 2 SCR 468. [13] Whether the accused had a lawful excuse for breaching the prevention order was therefore a fundamental question atthe

summary conviction appeal. Since there was no properly tendered evidence of a lawful excuse before the trial judge, the SCAjudge’s conclusion that there was a lawful excuse was a material misapprehension of the evidence and cannot be allowed to stand. [14] One further comment is necessary. The SCA judge found that it is a “solid practical approach” to allow the parties to aprevention order to vary the order by their conduct and to “resort back to relying upon the order” with notice.

It is contrary to thepurpose of the Act, and what is known about domestic violence, to suggest that an order can be varied in this manner. See R v Fairchuk(CL) (2002), (MB PC), 169 ManR (2d) 13 at para 93; and the Commission of Inquiry into the deaths of RhondaLavoie and Roy Lavoie, A Study of Domestic Violence and the Justice System in Manitoba (Winnipeg, Manitoba Justice, 1997) the HonMr Justice Perry W Schulman at 111.

Pursuant to section 14(1) of the Act, a prevention order may only be made if the court finds thatthe person to be protected by the order has been stalked or subjected to domestic violence by the responding party. Once the order hasbeen made, served on the responding party, and filed in court, the order remains in effect until a judge is satisfied on application “that itis fit and just” (at section 19(1)) to vary or revoke the order. [15] In the result, the appeal was allowed and the accused was found guilty of the two counts of breaching a court order.

Inlight of the Crown’s concession that the fit and proper sentence in the circumstances would be an absolute discharge, that was thesentence imposed. JA JA JA